Fight terror, defend freedom

Reposted from Jerry Fishenden’s blog. Jerry is a member of ORG’s Advisory Council.

To the House of Commons last night [18 October] where I have been invited to join the panel for the launch of the new booklet by Dominic Raab MP — “fight terror, defend freedom” (PDF format). As well as Dominic, we were joined on the panel by David Davis MP, the former Shadow Home Secretary, and our host Alex Deane from Big Brother Watch.

Dominic’s paper is well worth a read (as indeed is his book, “The Assault on Liberty, What Went Wrong with Rights“). One of his key points is that our justice system is an underused weapon in the fight against terrorism. We should be strengthening our capacity to prosecute terrorists, not least by lifting the ban on using intercept evidence in court.

Based on the compelling evidence that Dominic has put together, the result of all the liberty-infringing anti-terrorism legislation that has been pushed through in the UK is that we are now, as he put it, “less free and no safer“. This benefits no-one: indeed, it runs the danger of producing the opposite outcome of that intended by alienating the very elements in society that we need to ensure feel an integral and welcome part of our community.

I was there to consider whether technology was a blocker or enabler of some of these changes. On the specific point of whether to permit the use of intercept evidence in court, there appears to be a major contradiction in the claim that doing so would place too big an administrative burden on intelligence and law enforcement agencies. After all, the very same organisations that suggest there would be an “administrative burden” caused by the use of highly targeted intercept evidence also proposed the Interception Modernisation Programme, a programme of routine mass surveillance of the entire UK population that would have generated far more data and bureaucracy.

There is also the concern that using intercept evidence in court might disclose secret techniques and allow defence lawyers to fish for other information that could compromise sensitive sources. Dominic deals with the latter issue convincingly in his paper, concluding it is not an issue. On the “secret techniques” concern, given that the UK is almost alone in not using intercept evidence in court, this appears to me a weak argument since revelations in courts around the world about interception techniques are a matter of public record. There is also, as with the protection against fishing expeditions into intercept data, an existing ability in court to withhold sensitive information that would otherwise compromise sources or techniques.

My suspicion is that most terrorists, like any other criminals, already work by default on the assumption that their activities are under surveillance. If anything, I suspect they over-estimate the ability of the intelligence agencies to intercept and interpret their communications, particularly if they are fans of fictional programmes such as Spooks. The recent disruption of FARC guerrilla operations in Colombia provides an interesting illustration of this. When one of their key bases was raided, it was discovered that they were no longer using electronic communications at all because of their suspicions that they were being intercepted. Instead they used a network of human couriers to move encrypted USB data sticks between their bases. The more that governments try to routinely intercept all electronic communications, the more I expect to see other, less susceptible channels used.

There are clear anomalies in the current UK model. For example, the authorised bugging of a conversation is allowed as evidence in a court, whereas if the same people carried on exactly the same conversation over an intercepted email exchange it is not allowed as evidence in court. There appears no sense to me as a technologist why the law should distinguish based upon the nature of the communication channel. Indeed, the more I dig into such areas the more it seems that technology is being used as a smokescreen to extend intrusive state surveillance capabilities rather than merely to retain their equivalence in the digital age.

Technology policy needs abstracting and to be based on broad legal principles: bad law is made when it becomes so specific, or is based on the spurious idea that somehow technology should compel us to pass laws that infringe upon the UK’s traditional civil liberties. Technology policy needs to be brought into alignment with wider public policy and, in particular, the underlying assumption that we are all innocent until proven guilty. Of late far too much technology seems to have been designed from the very opposite perspective.

This raises the key question of who in government actually understands, owns, oversees and is accountable for how technology policy operates across the public sector? We have no equivalent of the Chief Medical Officer, or Chief Scientific Officer, in terms of stature and influence when it comes to technology policy. This may explain why technology has ended up often delivering the very opposite of what policymakers intended.

Under the previous Labour administration there were repeated failures of technology policy across a whole range of programmes — identity cards, ContactPoint, much of the NHS IT programme, Transformational Government, and the proposed interception modernisation programme to name just a few.

Such a chasm between public policy aspiration and reality is untenable. A much smarter governance model is urgently needed. The real challenge now is for the coalition government, and for Labour in opposition, to learn from these systemic failures and put into place a better governance mechanism for the way in which technology policy and public policy are co-designed and implemented.

Last night also reinforced my view that when Tony Blair argued after the July 2005 terrorist attacks in London that we should “Let no-one be in any doubt, the rules of the game are changing”, he made a fundamental mistake. As Ed Murrow, the American journalist, commented during a 1946 BBC radio broadcast, the test of an open society under duress is the degree to which it does not tamper with liberty and due process, even when under the most testing of circumstances. “There was no retreat,” as he put it when writing about the Second World War. “From the principles for which your ancestors fought.”

It feels like a damning indictment that we cannot say that now.

But I remain an optimist. Dominic’s paper helps provide an important, corrective step. Its recommendations now need to be taken on board by all political parties. I can only hope they are. It would be a timely move towards restoring a better balance of our civil liberties and the necessary tools to tackle terrorism in a far more effective way, using the courts, as Dominic put it, “as a weapon“.

And, from a technologist’s perspective, if we can also take this opportunity to implement a better governance model for technology policy, one that better aligns with both our civil liberties and public policy, then it will be doubly welcome.